Changing Patterns of Legal Representation in Divorce: From Lawyers to Pro Se
| Published date | 01 March 2003 |
| DOI | http://doi.org/10.1111/1467-6478.00250 |
| Author | Lynn Mather |
| Date | 01 March 2003 |
JOURNAL OF LAW AND SOCIETY
VOLUME 30, NUMBER 1, MARCH 2003
ISSN: 0263-323X, pp. 137–55
Changing Patterns of Legal Representation in Divorce:
From Lawyers to Pro Se
Lynn Mather*
Governmental assistance for legal representation in civil cases is far
greater in the United Kingdom than in the United States of America.
This article explores the extent of legal support for low-income
Americans, particularly in the area of family law. Examination of the
data on self-representation across the United States and over time
shows decreased reliance on lawyers. Drawing on institutional and
individual perspectives, the article then explores why individuals
choose to represent themselves in divorce. What do lawyers add to a
divorce besides cost? The article suggests patterns of lawyering
depending upon the lawyer and the resources of the client. While some
pro se individuals may thrive in the divorce process without the need of
a lawyer, others are disadvantaged by the lack of services available to
them. The matching process between case needs and legal repre-
sentation does not work.
INTRODUCTION
Despite its reputation for having a litigious culture and being a country of
legal rights, the United States of America lacks a government-supported
system for providing legal representation in family law. Americans look with
envy to the United Kingdom for its comprehensive governmental support of
legal aid and its promise of legal representation for all citizens. Americans in
Britain are surprised by legal services that the British take for granted, given
the limited support for legal aid in the United States. According to a recent
study, per capita government expenditures for civil legal assistance in the
137
ßBlackwell Publishing Ltd 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and
350 Main Street, Malden, MA 02148, USA
*The Baldy Center for Law & Social Policy, O’Brian Hall, University at
Buffalo Law School, Buffalo NY 14260 United States of America
An earlier version of this paper was delivered at the Legal Services Research Centre
International Conference, 20–21 March 2002, Jesus College, Oxford. I thank Karen Liot
and Claire Manske for their outstanding research assistance.
United States are only $2.25 compared to $32.00 in the United Kingdom.
1
But of course this tendency to look to ‘the other country’ for solutions to
common problems runs on both sides of the Atlantic. Confronted with
skyrocketing expenses for legal aid, British policymakers in recent years
have examined various programmes and alternatives in the United States to
learn new ways of economizing on legal services, especially in the fast-
growing area of family law.
In the United States, a country without guaranteed legal aid for family
matters, how do people resolve conflicts and access their legal rights in
obtaining a divorce? Besides reliance on government spending, how else can
legal services be provided for those who cannot afford an attorney? How
frequent is pro se (self-) representation in divorce? What explains the
enormous differences across jurisdictions in patterns of pro se repre-
sentation? And where lawyers are involved, what exactly do they provide
divorce clients? By exploring such questions, this article will contribute to
our understanding of how governmental policies and the legal profession in
the United States can best meet the legal needs of individuals seeking a
divorce.
The increased number of divorce cases has intensified demand for legal
representation and trial courts are facing huge caseload burdens from family
law issues. One expert reports that domestic relations cases constitute between
25 and 50 per cent of all civil cases in the United States, and this is the fastest
growing category of cases in the country.
2
Research from courts in twenty-
four states similarly found family law to constitute 33 per cent of all civil
cases.
3
Although divorce petitions comprise many of these cases, domestic
relations also includes adoption, paternity, modification of child support,
orders of enforcement, domestic violence, and other family law matters.
WHO PAYS FOR LEGAL REPRESENTATION IN DIVORCE?
Although the United States Supreme Court established the right to counsel for
indigents in criminal cases in 1963, the Court later rejected claims to extend
such federal constitutional protection to indigents in civil cases. Interestingly,
these early claims to right to counsel in civil cases dealt with family law
conflicts such as termination of parental rights or child custody disputes.
4
138
1 A. Houseman, ‘Civil Legal Assistance for Low-Income Persons: Looking Back and
Looking Forward’ (2002) 29 Fordham Urban Law J. 1213, at 1226.
2 J. Pearson, ‘A Forum for Every Fuss: The Growth of Court Services and ADR
Treatments for Family Law Cases in the United States’ in Cross Currents: Family
Law and Policy in the United States and England, eds. S. Katz et al. (2000) 513.
3 J. Goedt, ‘Divorce Courts: Case Management, Case Characteristics, and the Pace of
Litigation’ in (1992) 16 Urban Jurisdictions 4.
4 R. Cramton, ‘Symposium on Mandatory Pro bono’ (1991) 19 Hofstra Law Rev.,
1113.
ßBlackwell Publishing Ltd 2003
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